r v. Spurrell, 2016 NLCA 44

Donald Broaders (applicant/appellant) v. Mary BolandBroaders (respondent) (16/73) Indexed As: Broaders v. Broaders 2016 NLCA 44 1 C.A.N.L.R. 1 Court of Appeal of Newfoundland and Labrador Green C.J.N.L. September 9, 2016

Summary: Mr. Broaders sought leave to appeal an order of the Supreme Court Trial Division ordering him to continue to pay spousal support on aninterim basis pending an application in the Supreme Court Trial Division to vary a prior spousal support order. He had applied to suspendthe order for spousal support entirely, arguing his ex-wife’s income was now higher than his. The applications judge did not suspend theorder but reduced payments going forward. Held: Application for leave to appeal granted. Green C.J.N.L.: Paragraphs (a), (b), (

c) and (

d) of rule 57.02(4) of the Rules of the Supreme Court, 1986 justified granting leave toappeal. The question of whether a lower-income spouse can ever be ordered to pay support to a higher income spouse is an importantone. If the payor is required to pay and is subsequently found not to have support obligations, it may be difficult to recoveroverpayments. The appeal was not frivolous or fanciful. The Court was also concerned about the practice in the Family Court of notsetting hearing dates for a full hearing at the time of the making of an interim order.

The policy of discouraging appeals from interlocutory orders, including mid-trial and pre-trial rulings to avoid delay did not apply as theappeal could be heard long before a full hearing in the Supreme Court could be held. Moreover, unlike merely procedural interlocutoryorders, the present case dealt with the determination of substantive rights. The application for leave to appeal was granted. Cases cited: Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld. C.A.) United Food and Commercial Workers, Local 1252 v. Cashin et al. (1994), (NL CA), 124 Nfld. & P.E.I.R. 201 (Nfld.C.A.) Baldwin v.

Baldwin, 2013 NLTD(G) 89 Counsel: Jean V. Dawe Q.C., for the appellant; Appearing on her own behalf, the respondent. This application was heard and decision rendered orally on September 6, 2016 by Green C.J.N.L. The following Memorandum of Disposition was filed on September 9, 2016. ______________________________________________________________

Green C.J.N.L.: [1] Mr. Broaders sought leave to appeal an interim order for spousal support, pending trial on his application to vary a previousspousal support order. [2] The key circumstance is that Mr. Boarders was the subject of a substantial spousal support order made by Fowler J. in 2014based on a high income Mr. Broaders was then earning from employment in the oil industry offshore. The spousal support was made ona non-compensatory basis. Mr. Boarders subsequently lost his job and is now earning from carpentry work, he claims, less than one fifthof his previous income.

He applied to vary the support order on the basis of a material change in circumstances. [3] Because he was facing a long delay in Family Division for that hearing (a hearing date has still not been set), he applied for aninterim order, pending trial, suspending any support payments on the basis, amongst other things, that his wife’s income was now greaterthan his and that if he were to have to continue with support payments (which ultimately the full variation hearing might determine heshould not have been paying based on his reduced income), he might not be able to recover any overpayments he made to his wife in themeantime. [4] The applications judge refused to suspend support payments on an ongoing basis but did substantially reduce the amount.

One ofthe reasons she gave for not suspending payments altogether was that entitlement to support had already been determined by Fowler J.and that therefore Mrs. Broaders should continue to receive some support amount. She did not engage in any analytical calculations as tohow, applying the Spousal Support Advisory Guidelines or any other basis, she arrived at the amount she set. [5] That interim order, if not dealt with on appeal, would, barring any other change in circumstances, remain in effect until thevariation trial is held. I was told by counsel for Mr.

Broaders that although requests have been made to set a date, the Family Divisionhas not yet done so and that the matter is scheduled to be addressed again at a case management meeting in October. She says that if adate were set at that time, it is likely that, based on the Court’s existing crowded docket, the matter would not be heard before late 2017. [6] If Mr. Broaders is granted leave to appeal, counsel intends to argue, amongst other things, that the applications judge erred inlaw: (

i) in not suspending payments when the evidence was clear that Mr. Broaders’ reduced income was less than Mrs. Broaders’income; (ii) in ordering the lower income spouse (Mr. Broaders) to pay spousal support to the higher income spouse (Mrs.

Broaders)thereby creating a greater disparity in their respective incomes, contrary to the principles underlying the Spousal Support AdvisoryGuidelines and spousal support law generally; (iii) in concluding that the issue of entitlement to spousal support could not be revisited despite a material change incircumstances and despite the fact that the original support decision had determined that Mrs. Broaders had no entitlement to support ona compensatory basis; (iv) in ignoring the evidence of Mr. Broaders’ financial circumstances insofar as they disclosed an inability to pay any amount; (

v) in refusing to set a trial date for the full variation application at the time the interim order was made, thereby inappropriatelydelaying the final determination of the issues. [7] I am satisfied that these are substantial issues that certainly cannot be considered frivolous or fanciful.

Indeed, the question ofwhether it is ever appropriate in the circumstances for an order to be made requiring a lower income spouse to make, on a non-compensatory basis, support payments to a higher income spouse – which would certainly seem to be contrary to the conventionalunderstanding – is an important question. [8] In addition, I am concerned about the apparent practice of not setting dates for the full hearing when an interim order is made.Unless the parties consciously decide to affirm an interim order as a final order, an interim order should not be allowed to become ineffect, by effluxion of time, a final order.

That would be contrary to the intent and purpose of making an order to deal with a (generally)short-term and temporary situation. It is the same with, in another context, the practice, except in very rare cases, of never granting aninterim injunction without setting a return date for a full hearing. [9] For these reasons, I consider the issues raised to be significant enough to justify this Court hearing the appeal. [10] The policy underlining the reluctance of the Court to hear and determine appeals from interlocutory orders is one of “fosteringavoidance of trial delay” (Langor v.

Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld. C.A.) at paragraph19). The policy was expressed by Marshall J.A. in United Food and Commercial Workers, Local 1252 v. Cashin et al. (1994), (NL CA), 124 Nfld. & P.E.I.R. 201 (Nfld. C.A.) at paragraph 36: If decisions taken in the course of trial were appealable as a matter of right, litigation might never be brought to completion and disputescould be interminably protracted as trial courts waited on outcomes of appeals.

[ 11 ] For the same reasons, the policy applies not only to mid-trial rulings but also to pre-trial decisions that are not final in nature, as well. In Langor , I observed: [15] … While orders made in the course of trial are perhaps the paradigm case justifying a limit on appeals because of the delays and interruptions in the trial process that they would engender, appeals of pre-trial procedural orders can also be productive of mischief by unduly delaying a case getting to trial. The policy underlying the leave requirement applies to such situations as well.

There therefore has to be good reason to allow the procedural flow of pre-trial and trial proceedings to be interrupted by an interlocutory appeal. [ 12 ] The current case, however, is not one of an interlocutory procedural order made mid-trial or in the course of pre-trial preparation which, if appealed, would have the effect of interfering with or slowing down the final determination of the issues ultimately in dispute. Indeed, if counsel for Mr. Broaders is correct, the appeal will likely be dealt with long before the actual variation application will be able to be heard.

Furthermore, what is at issue here is of a different order than pre-trial or mid-trial logistical or procedural decisions. It involves the correctness of a determination that settles substantive rights of the parties for a considerable time into the future. [ 13 ] More specifically, I am satisfied that paragraphs (a), (b), (

c) and (

d) of rule 57.02(4) of the Rules of the Supreme Court, 1986 have application here, as justification for granting leave. Because there are other decisions in this jurisdiction (e.g. Baldwin v. Baldwin 2013 NLTD(G) 89 per Stack J. at paragraph 15) which suggest that the idea of a lower income spouse paying spousal support to a higher income spouse on a non-compensatory basis is not appropriate, there is a basis for doubting the correctness of the decision in this case. The proposed appeal also involves matters which, in my view, as expressed earlier, are of such importance that leave to appeal ought to be granted.

Furthermore, there is certainly a risk, as suggested by counsel for Mr. Broaders, that if he is required to pay the interim support until trial but ultimately it is determined that he should not have to pay, there may be considerable difficulty in Mr. Broaders being able to recover any overpayments in view of the fact that Mrs. Broaders has disposed of one of her most substantial assets, her home. [ 14 ] Accordingly, following hearing from the parties I granted leave to appeal. I also expressed the view that the appeal should be fact-tracked and ordered that: 1. The proposed notice of appeal submitted by Mr.

Broaders as part of the application for leave shall be deemed to have been filed as of September 6, 2016; 2. Mr. Broaders shall file the Appeal Book on or before September 9, 2016. If Mrs. Broaders is of the view that additional materials need to be included in the Appeal Book, she can file a Supplemental Appeal Book when she files her factum; 3. Mr. Broaders shall file his Factum on or before September 23, 2016; 4. Mrs. Broaders shall file her Factum on or before October 28, 2016; 5.

Either party may request further directions in the event filing dates are unable to be met or other issues arise. [ 15 ] Costs in the cause. Application allowed.